The New German Antitrust Law

The eighth amendment to the German Act against Restraints of Competition (GWB) has been in force since June 2013.
One of the most significant changes is that a dominant market position of an undertaking is no longer presumed at a market share threshold of one third, but only from a market share of 40% (Section 18(4) GWB).

The risk of falling within the scope of merger control (Section 36(1) sentence 1 GWB) or abuse control (Section 19 GWB) has therefore been noticeably reduced.

Another important change is that additional actors may assert claims against an undertaking.
For the first time, in addition to trade associations, consumer protection associations may also assert claims for the disgorgement of benefits against a dominant undertaking (Sections 34(1), 34a(1), 33(2) no. 2 GWB). In doing so, the associations must prove an intentional infringement of the GWB by the undertaking and the amount of the economic benefit obtained.

Practice will show whether this, like the claim for disgorgement of profits under the Act against Unfair Competition (Section 10 UWG), will likewise prove to be a rather toothless tiger.